Sunday, May 01, 2016

FESC: Sex offenders and anonymous speech

David Post & Annemarie Bridy         Sex Offenders, Anonymous Internet Speech, and the Constitution 
Discussant: Jonathan Hafetz: Anonymity doctrine v. federal/state sex offender notification acts, which impose identity disclosure requirements on sex offenders. Over 800,000 people, a quarter of whom were juveniles at the time of conviction. Have to register w/local law enforcement and reveal all internet identifiers. Failure to disclose is a felony.
Current challenges: it’s not clear what level of scrutiny is required. What narrow tailoring means is also highlighted by these cases. Where the gov’t singles out a class of persons to be deprived of a 1A right, the gov’t should have to show more than some statistical likelihood that anonymity will hamper future investigations.  Also not clear about how many safeguards are needed against disclosure to the public.  How concerned should we be about spillover from these restrictions to other types of speech?
Bridy: One possibility:  If we’re just disclosing info to the police, no harm no foul. Interested in structural surveillance; potential for this caselaw bleeding out into an attitude which normalizes structural surveillance. We might behave better if the police are watching us—keep these folks from reoffending. They’re so marginalized that people have little sympathy; doctrine will get warped if applied to a group considered distasteful.
Post: prisoners/foreign nationals have lesser/no 1A rights. If the courts just came out and said these were a lesser class of people, that might be terrible for those people and doctrinally wrong, but at least it would cabin the damage for the rest of us. The courts do not say this.  They say that these people have served their time and many are no longer on probation/parole and have same 1A rights as the rest of us. That makes the doctrine more worrisome b/c this is the same 1A I have to rely on if I have to disclose my internet identifiers.  Courts that have looked at these challenges have said in one way or another: yes you have a right to speak anonymously, but that doesn’t mean you have a right to speak anonymously as to the police.  That’s stunning!  Courts worry about publicizing the info, as if the right is only anonymity as to the community and not to the gov’t.  If that becomes 1A doctrine, there’s not much less of the right to be anonymous.
Bridy: courts that worry about disclosure say they can construe it narrowly: police can only use this info for a specific investigation. Who knows whether that construction makes its way out to the law enforcement officers themselves.
Post: crushing set of disabilities across the board: due process, ex post facto, cruel & unusual punishment, etc. There is a social justice aspect to this, and we want people to see that.  Can your right to speak anonymously be taken away because you’re a member of a group that, we assume, is statistically more likely to commit a crime in the future?
Q: Qualified privilege, not right: courts are more willing to engage in balancing tests with anonymity than with other clearer rights.  Registration requirements: a prior restraint!  Distinction b/t disclosure to gov’t and disclosure to public is ridiculous! Where the confusion may be happening is over the retaliation language in lots of cases—the chill happens even without punishment.  Scalia wanted retaliation to be a requirement, but that’s rejected by Macintyre: you don’t have to show that persecution will result, you just have to show you were compelled to disclose your name.  Doe v. Reed public records law case does say you need to show some initial risk of retaliation to win a facial challenge; that’s limited to the electoral context though.
Bridy: Empirical work on recidivism/collateral effects; some literature indicates that for juvenile sex offenders required to register, they had a greater rate of rearrest and nonprosecution for things.  Authors think there’s a surveillance effect: police look more closely at them and more likely to rearrest on thinner evidence.  So that’s some evidence of retaliation.
Q: pamphleting registration cases, anti-mask law cases—state doesn’t get to do that even if the speaker hasn’t shown risk of retaliation/harassment outside the electoral context.
Post: cases are split in terms of upholding—but even the ones that struck them down indicated that public v. police disclosure line is important for that.
Lyrissa Lidsky: fighting a myth that these offenders are uniquely likely to reoffend.
Post: there seems to be a small category of offenders w/significant risk of recidivism.  Then it goes to the overinclusiveness of it.  Likely harm as putting the gov’t to its proof; courts just say the risk of recidivism is very high. The SCt has said so, based on an SG brief that cited a Psychology Today article that cited no actual research.  Now other courts just cite that SCt case.
Bridy: often the harm is articulated as solicitation of minors online; tons of those required to register weren’t convicted of crimes relating to minors, and many of those who were weren’t convicted of crimes relating to  minors w/any online component.  And identifiers are required to be registered for almost anything, including ecommerce sites where you can ask a seller a question.
Q: doctrine seems solidly on your side assuming you can answer the question about harm.  Devil’s advocate: if people revisit Watchtower Bible, which said no registration w/the town can be required, should we adhere to that in all cases? Arguments about traceable anonymity: you don’t want someone who might do harm to block surveillance—CALEA.  One thing that might be going on is that courts might say: it’s ok if you get information that allows tracing should tracing be required, and put it in a lockbox until it’s needed. Maybe courts are convincing themselves that such a lockbox exists or that what’s in place in police departments is sufficient to protect the info. Even if the risk of future harm is low enough, it’s safe enough that most of us will feel fine surfing the web—if you’ve got nothing to hide, you’ve got nothing to fear.
Q: indeed, most forms of anonymity online are very traceable.
RT: What’s the law if any about public employees required to disclose as condition of employment? What’s the interaction w/national security law where there’s basically nothing stopping the gov’t from surveilling right now, it turns out?  (I’m in the middle of reading Charlie Savage’s Power Wars.) Good-behavior rationale as concession of chilling effect?
Post: subject to criminal penalties if you don’t disclose = unique versus the rest of us. Most rearrests of offenders are for failure to disclose.  In terms of deterrence: the deterrence is supposed to be of conduct. [But it has to be deterrence of doing things like ever interacting with a minor, right? The idea of the chilling effect is that people steer far wider of the prohibited zone.  But perhaps the thought is that nothing is lost if the sex offender can’t interact on social websites where minors might be.]
Q: surveillance in minority neighborhoods: more surveillance leads to more police encounters leads to more requirements to report leads to more failures to report leads to more “criminality.” Which reinforces the legitimacy of stripping away rights from that population.  Locate your story against a backdrop of what institutionalized surveillance does in terms of self-fulfilling prophecies.
Bridy: also connects to questions about uses of big data.
Abrams: there’s no general right of anonymity.  Libel: you can cut through anonymity.  You should deal with that more in the paper.  Separate class treatment: aren’t you conceding, by not objecting to the whole registration requirement absent the internet disclosures, that they are special classes? That is, you’re not contesting that they have to register address, license plate, etc.?
Post: courts at least pay lip service to the idea that they aren’t in a special category for 1A purposes, but then treating sex offenders as if they are in fact a special category.

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